Teen Convicted in Attack in Which Boy's Teeth Were Punched Out

The first of two Fairfax County teenagers charged with punching out the teeth of a 14-year-old McLean boy in a highly publicized Christmas Eve attack was convicted yesterday by a Fairfax jury of misdemeanor assault and battery.

The charge was the only one the jury could consider after Fairfax Circuit Court Judge Stanley P. Klein threw out aggravated malicious wounding and other felony counts late Wednesday. Klein ruled that Virginia law does not consider bare fists to be deadly weapons and that the attackers did not intend to permanently maim or disfigure the victim, Cody Gibbons.

The defendant, James Clarke, 16, would have faced a possible prison sentence of 20 years to life if convicted of aggravated malicious wounding. The same charge is pending against Anthony Nelli, 16, who witnesses said threw the punch that dislodged three of Gibbons's front teeth. Evidence at Clarke's trial showed that only one punch caused the damage.

The beating, which occurred on Westmoreland Street in McLean, drew widespread attention because it appeared to be unprovoked, a teen with the defendants videotaped it with his cellphone and Gibbons's braces had just been removed after seven years of orthodontia. He faces years of surgery to repair the damage, his dentist testified.

Gibbons, still 14, and his friend Matt Rude, 15, testified that they were walking down Westmoreland with skateboards and their friend Mike Shaw when two older boys whom they did not know emerged from a parked sport-utility vehicle. They denied making obscene gestures or comments to the people in the SUV that could have prompted a confrontation. They said the older boys began kicking at their feet, and Rude said he quickly walked away.

Gibbons testified that he told the youths to get away from him. "One of them hit me in the back of the head. One grabbed my arm. I turned around with my skateboard, and one hit me in my mouth, and one hit me right here," he said, pointing to his left cheek. He said that a fourth blow struck him in the forehead and that he did not recognize either attacker and did not know which one specifically threw the punches.

Gibbons said two of his teeth were knocked to the ground, and a third was loose. After hospital emergency room doctors said there was nothing they could do, the family dentist reimplanted the teeth but testified that they will probably fall out and need to be replaced by permanent implants.

Rude identified Nelli as the one who threw the punch to the mouth and Clarke as the teen who hit Gibbons in the head. Jordan T. Ghannam, 16, who was in the SUV with Clarke and Nelli, confirmed Rude's testimony.

Ghannam said that the group had been drinking beer before the attack and that he videotaped the incident with his phone but soon erased it. Court documents indicate that Ghannam told police that his video did not capture the fight.

Ghannam testified that the three skateboarders had "flicked us off" as the SUV passed them after Clarke had yelled at them. The SUV's driver, Robby Gavora, 17, said that he did not see the gesture but that Nelli reported it from the back seat, demanding that Gavora pull over and someone get out with him.

Gavora testified that Gibbons started the fight by swinging his skateboard at Clarke and Nelli like a baseball bat and that Clarke's only blow was to deflect the skateboard in self-defense.

Clarke did not testify.

Virginia law defines malicious wounding as causing injury "with the intent to maim, disfigure, disable or kill," and the crime becomes aggravated when the victim suffers "permanent and significant physical impairment." Clarke's attorneys, Bruce Blanchard and Jonathan Frieden, argued that one blow with a bare fist did not qualify as having the intent to maim or disfigure, and Klein said Virginia law has long held that "fists may not generally be regarded as deadly weapons" unless there are repeated blows or another extenuating circumstance.

"No reasonable juror," Klein ruled, "could infer from the circumstances that the perpetrators intended to inflict permanent injury. They intended to assault." He reduced the charge from a felony to a misdemeanor.

The jury took about 90 minutes to find Clarke guilty. Klein must decide whether to sentence the teen as an adult, with a maximum penalty of a year in jail, or as a juvenile, with a maximum penalty of 30 days in jail.

Clarke and his parents declined to comment. But Blanchard said that they were devastated by the case and that Clarke had been expelled from McLean High School. Blanchard said he was confused about why prosecutors chose to file such a serious charge and prosecute Clarke as an adult. Fairfax Commonwealth's Attorney Raymond F. Morrogh did not respond to requests for comment yesterday.

Clifford Gibbons, the victim's father, limited his comments because of Nelli's upcoming trial and likely civil litigation. "I only want to make sure that Cody is able to be properly restored to his state of physical and mental health prior to this brutal assault," he said.